The Ninth U.S. Circuit
Court of Appeals yesterday directed a judge to vacate orders that a party to
litigation desist from using its website or social media for any discussion of
a dispute over use of the words “comic-con” or “comic con” in connection with
comic book conventions.

The
defendant in a trademark infringement action, set to go to trial Nov. 28,
succeeded in gaining a writ of mandate, issued late yesterday, commanding U.S.
District Court Judge Anthony Battaglia of the Southern District of
California to scrap his orders, aimed at preventing a tainting of the jury pool
in San Diego.

The
combatants are contested the San Diego Comic Convention (“SDCC”), the
plaintiff, and Dab Farr Productions and others, who stage the Salt Lake Comic
Con, the defendants.

Memorandum Decision

A
three judge panel said in a memorandum opinion, filed late yesterday:

“The
orders at issue are unconstitutional prior restraints on speech. They prohibit
speech that poses neither a clear and present danger nor a serious and imminent
threat to SDCC’s interest in a fair trial. The well-established doctrines on
jury selection and the court’s inherent management powers provide an
alternative, less restrictive, means of ensuring a fair trial.”

“Unlike
other cases involving attorneys or the press, grisly crimes or national
security, the district court’s orders silence one side of a vigorously
litigated, run-of-the-mill civil trademark proceeding. The orders ban Petitioners
from electronically posting, transmitting, or referencing publicly available
documents, in their entirety, even if posted without commentary. And the
district court went beyond silencing Petitioners; it mandated that they
prominently and ubiquitously articulate a ‘disclaimer’ that, at the very least,
incriminates and disparages their previously expressed opinions.”

Orders Not
Sensible

It
continues:

“The
orders are simultaneously unmoored from the interest they purport to
protect—the integrity of the San Diego-area jury pool. For example, nothing
prohibits Petitioners from contacting and collaborating with San Diego-area
media to create newspaper articles, magazine features, or television coverage
of the case, and Petitioners would not even have to include the ‘disclaimer,’
which is explicitly limited to Petitioners’ online activities. Nothing prevents
Petitioners from mailing all San Diego-area residents annotated copies of the
publicly available filings. And nothing prevents Petitioners from holding press
conferences in San Diego at which they discuss the case (while avoiding the
specific prohibitions in the first protective order).”

The
panel labeled Battaglia’s edicts “suppression orders.”

The
case is Dan Farr Productions v. United States District Court for the
Southern District of California, No. 17-72682.